(영문) 대법원 2014.1.23.선고 2012다84233 판결

The part of the lower judgment against the Defendant is reversed, and that part of the case is remanded to the Seoul High Court. The Plaintiffs’ appeals are dismissed.

Reasons

The grounds of appeal are examined (to the extent of supplement in case of supplemental appellate briefs not timely filed).

1. Regarding the plaintiffs' grounds of appeal

A. According to Article 2 of the former Special Act on the Management of Intercity Transport in Metropolitan Areas (amended by Act No. 8251, Jan. 19, 2007; hereinafter referred to as the "former Intercity Transport Act"), the term "metropolitan area" means the area prescribed by Presidential Decree among the areas located in the Special Metropolitan City, Metropolitan City, Metropolitan Cities, and their cities under Article 2 (1) 1 of the Local Autonomy Act and within the same traffic life zone as the cities (subparagraph 1); the term "metropolitan traffic facilities" means transportation facilities for dealing with large-scale traffic demand in metropolitan areas, which meet the requirements prescribed by Presidential Decree (hereinafter referred to as the "City/Do"), the urban railroads or railroads operated across two or more Cities/Dos, which meet the requirements prescribed by Presidential Decree, and meet the requirements prescribed by Presidential Decree (hereinafter referred to as the "Metropolitan City/Do"), the operator shall faithfully establish and submit measures for improvement under Article 7 (1) and/or (2) to the Minister of Construction and Transportation (hereinafter referred to as the "Metropolitan Transport Facilities Act"), and shall establish and submit measures for improvement under Article 7 (1).

In addition to the relevant provisions of the former Act on Special Cases Concerning the Acquisition of Land for Residents and the Compensation for Damages, a contribution based on the measures to improve metropolitan transport facilities is required for the construction and improvement of metropolitan transport facilities in a metropolitan area and for the enhancement of the value of housing sites and houses in the course of implementing a large-scale development project in a metropolitan area, and thus gains benefits therefrom, a contribution based on measures to improve metropolitan transport facilities in the metropolitan area cannot be deemed as falling under the cost of basic living facilities to be provided as a basis for livelihood to a person subject to measures to take measures for relocation. Furthermore, considering that Article 11-2(1)3 of the former Act concerning charges for metropolitan transport facilities imposed pursuant to Article 11 of the former Act on Special Cases Concerning the Acquisition of Land for Residents and the Compensation for Damages, it is difficult to exempt a person subject to measures to improve a housing site and a house construction project, even if an operator of a housing unit, who is the imposing authority of charges for metropolitan transport facilities, is not subject to measures to exempt a person subject to measures to take measures to improve metropolitan transport facilities from the cost of a housing unit.

B. The lower court determined that the Defendant could not be held liable for tort on the part of the Defendant, who was charged with the charges calculated in accordance with the measures to improve metropolitan transportation planned by Gyeonggi-do and imposed in accordance with the Ordinance of the Ministry of Construction and Transportation, on the ground that the cost of handling metropolitan transportation cannot be deemed as the basic living facilities for the resettlement settlement area, and thus cannot be deemed as the cost of installing basic living facilities under Article 78(4) of the former Act on the Acquisition of Land, etc. for Public Works and the Compensation therefor (amended by Act No. 8665, Oct. 17, 2007; hereinafter “former Public Works Act”).

Examining the record in light of the above legal principles, the above determination by the court below is just in its conclusion, and contrary to the logical and empirical rules, the court below did not err by exceeding the bounds of the principle of free evaluation of evidence, or by misapprehending the legal principles on the installation cost of basic living facilities

C. Meanwhile, the plaintiffs asserted that the court below omitted the judgment on the claim for damages caused by the violation of the Housing Act. However, as seen earlier, even if the operator of the development project had transferred the shares in accordance with the measures to improve metropolitan transportation, so long as the operator of the development project could not be deemed to have benefited from the sale price equivalent to the share in the development project without any legal grounds, the plaintiff's assertion is clearly rejected even if the decision was omitted, so the omission of the judgment by the court below

2. As to the Defendant’s ground of appeal

A. As to the assertion of sale price

According to the reasoning of the judgment below, in concluding a special supply contract with the plaintiffs who are subject to relocation measures, the part that does not exceed 265 meters is calculated by comparing the amount calculated by deducting basic facilities installation costs according to the defendant's calculation method based on the cost of the housing site development and the amount equivalent to 80% of the cost of the housing site development. If the supply price of the above housing site includes basic facilities installation costs in the supply price of the housing site, it shall be deemed that the defendant's unjust enrichment is established. On the other hand, in this case where the supply price of the housing site is not determined based on the appraisal price, the cost of the basic facilities installation is not calculated based on the supply price equivalent to the appraisal price.

In the same purport, the court below is just in rejecting the defendant's assertion that the legitimate sale price of the instant sales contract should be calculated by deducting the basic facilities installation cost from the appraised price of the relevant housing site. In so doing, the court did not err by misapprehending the legal principles on the methods of calculating the legitimate

B. Regarding the scope of recognition of the cost of installing basic living facilities

(1) According to Article 78 of the former Public Works Act, a project operator shall establish and implement relocation measures or pay resettlement funds as prescribed by Presidential Decree for a person subject to relocation measures (Paragraph 1). The details of relocation measures include the installation of basic living facilities in accordance with the relevant local conditions, such as roads, water supply facilities, drainage facilities, and other public facilities in the resettlement area. The cost incurred therein is borne by the project operator (main sentence of Paragraph 4). Therefore, a project operator is obligated to return the cost of the basic living facilities that he/she should bear to a person subject to relocation measures for unjust enrichment.

(2) In calculating the cost of basic living facilities for the housing site development project of this case, the court below is just in light of the illegality that included the total amount of the cost of basic living facilities for all roads, traffic squares, water supply squares, drainage stations, heating stations, sewage treatment stations, sewage treatment pumps, etc., multiplied by the total cost of earth and sand construction multiplied by the ratio of the area of the basic living facilities to the total cost of the appurtenant construction; and the unit air multiplied by the total cost of the appurtenant construction multiplied by the ratio of the area of the basic living facilities to the total cost of the appurtenant construction; the total cost of the road and packing hole, street lamps, street lamps, underground street lamps, tunnels, bridges, bridges, excellent public water supply facilities, etc.; the total cost of the cost of the basic living facilities of this case is included in the cost of the basic living facilities; and the cost of the basic living facilities of direct labor cost, sales cost, management cost, capital cost, and other costs of the basic living facilities of this case, and it

(3) However, in a case where a project proprietor provided the site for facilities to a person who supplies electricity, gas, heating, etc. with a cost higher than the cost of housing site development, the cost of the site cannot be deemed to have been transferred to the sale price, and thus, it shall not be included in the cost of basic facilities.

According to the records, the defendant et al. revealed the fact that he supplied land for transformation stations, gas supply facilities, and integrated energy supply facilities within the housing site development project district of this case with compensation. Nevertheless, the court below concluded that the land cost for each of the above facilities was included in the sale price of the plaintiffs. This decision is due to failure to exhaust all necessary deliberations as to whether the cost of basic living facilities is the whole cost

C. As to the grounds of appeal regarding the timing of unjust enrichment and the starting point of interest on delay

(1) The lower court determined that the Defendant is liable to pay the Plaintiffs unjust enrichment calculated by the method as indicated in its holding by adding the statutory interest rate of 5% per annum as stipulated in the Civil Act from the day following the date of the final payment of the sales price under the instant sales contract to the date of the final payment of the sales price under the sales contract

(2) However, it is difficult to accept such a determination by the lower court for the following reasons.

Article 748(2) of the Civil Act provides that a malicious beneficiary shall compensate for any loss, if he/she returns the profit with interest added thereto, and Article 749(2) of the same Act provides that a bona fide beneficiary shall be deemed a malicious beneficiary from the time when the lawsuit is brought against the bona fide beneficiary. In such cases, the fact that the beneficiary is a bona fide beneficiary shall be proved by the claimant, and "when a lawsuit is brought" refers to when a copy of the complaint has been delivered to the defendant.

Therefore, if the Defendant’s return of unjust enrichment against the Plaintiffs is partially recognized, the lower court should have examined whether there is evidence to acknowledge that the Defendant was maliciously, and if it is difficult to recognize it, the lower court should have ordered the Defendant to pay interest or delay damages from the time when the duplicate of the instant complaint was served on

Nevertheless, the court below concluded that the seller is liable to pay legal interest from the day after the last payment date of the sale price under the contract for sale in this case. It erred by misapprehending the legal principles on the starting point of the statutory interest to be returned together with unjust enrichment.

3. Additional Judgment

Examining the reasoning of the lower judgment in light of the evidence duly admitted and the record, the Defendant, in principle, shall supply the multi-resident housing site based on a multi-resident's calculation of 165 square meters or 265 meters per parcel in accordance with the established rules on the establishment and enforcement of the multi-resident housing site. However, if it is inevitable in view of the conditions of the relevant project district, such as the land use plan and the efficiency of land use, etc., and the real estate market trends in the relevant region, it shall be excluded, and if it is inevitable, the supply price of the housing site shall be determined by comparing the amount obtained by subtracting the cost of basic living facilities according to the Defendant's calculation method, and the amount equivalent to 80 percent (Seoul Metropolitan area and Metropolitan City area) or 70 percent (other areas) of the cost of housing site development. In the event of supplying a parcel exceeding 265 meters, the excess portion shall be supplied at the appraised price level; in the instant housing site development project, it shall be supplied by applying the appraised price to the excess portion; and in accordance with the

Therefore, since the part supplied by the defendant to the plaintiffs who are eligible for the relocation measures in excess of 265 meters of the supply of the housing site for the migrants of this case is the same as that of the supply to the general buyers instead of the contents of the relocation measures, the installation cost of the basic living facilities equivalent to the excess portion should be transferred equally to the general buyers, and therefore, it shall be additionally stated that the excess portion should be calculated as the appraisal price and included in the legitimate

4. Conclusion

Therefore, the part of the lower judgment against the Defendant is reversed, and that part of the case is remanded to the lower court for further proceedings consistent with this Opinion. The Plaintiffs’ appeals are all dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.